Gazley v News Group Newspapers Ltd
Reference:  EWHC 2675 (QB);  1 Costs LR 129
Court: Queen's Bench Division
Judge: Eady J (sitting with Assessors)
Date of judgment: 18 Nov 2004
Summary: Costs - Defamation - Instruction of Specialist Solicitors - Reasonableness - CPR 44.4(2)(b) - Appeal - Review - CPR Part 52.11
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Instructing Solicitors: Carter-Ruck for the Claimant; Farrer & Co for the Defendant
An article published in The Sun had been illustrated erroneously with a picture of the Claimant and as a result he had been wrongly identified as a paedophile and seriously libelled. The Defendant accepted liability, published an apology in the next edition of The Sun and offered to pay the Claimant compensation. An initial offer of £10,000 was made. He had originally instructed local solicitors in Norwich, but was dissatisfied with the service he received. In the week after publication of the article, he instructed Carter-Ruck (“CR”). The claim was eventually settled following a payment into court of £50,000. At the assessment of costs hearing, the Costs Judge held, applying Wraith v Sheffield Forgematers Ltd  1 WLR 132, that the decision to instruct CR had not been reasonable and that the Claimant should have used local solicitors. The Claimant appealed.
(1) The proper role of the Appeal Court; (2) whether the lower court had been misled (3) whether the decision of the Costs Judge was wrong.
Dismissing the Appeal (1) under CPR 52.11 the Court’s role was one of review. Where the decision appealed is an exercise of discretion or an evaluation of evidence, the Appeal Court’s role is limited to considering whether the lower court had applied the right test, considered all relevant information and excluded all irrelevant considerations. Without showing an error of approach, it was only where the decision was plainly wrong or “exceeded the generous ambit within which reasonable disagreement is possible” that an Appeal Court would interfere; (2) the Costs Judge had not been misled by the Defendants’ evidence; (3) the Costs Judge had fully considered the Wraith factors. Although the Appeal Court did not agree with his assessment of some of the individual factors, overall his decision was not one that could be described as wrong (plainly or otherwise).
As the Judge found, on its facts this case was a very unusual one. He rejected the suggestion made by the Claimant that “the outcome of this appeal has the potential to shape the course of defamation litigation for many years to come.” Applying the Wraith factors, whether or not it is reasonable to instruct specialist solicitors will depend upon the particular facts of each case. The assessment of the reasonableness of the decision to choose specialist solicitors is to be judged objectively and, following <A
href=”https://www.5rb.com/5rb/casereports/detail_redirect.asp?case=74″ target=_parent>Musa King, “toughly in accordance with CPR principles”.